SCOTUS OT 2021 - Oral Argument Notes (Day 5 - 10/13/2021)

Lloenflys

"Certainty is an illusion ..."
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SCOTUS finished up the October Sitting of OT 2021 on Wednesday with two final arguments, one of which was a very boring pension-payment case and one of which ... well, very much was not. The Court will next sit for Oral Argument on November 1 for a two-week sitting that will cover a disappointingly small 9 cases. It is highly, highly unlikely that any merits decisions from this October sitting would be ready before the middle of December, so don't look for any decisions to come out during that November sitting. Now, onto the notes!

(1) The first case of the day was ostensibly about the standard for determining how to review a district court's evidentiary decisions in the mitigation phase of a death penalty case but ... really, it was all about the death penalty generally. The case was United States v. Tsarnaev, and if you recognize the name it is because Tsarnaev is the Boston Marathon bomber - or, in this case, the surviving brother Dzhokhar Tsarnaev. After being adjudicated as guilty in the bombing, Tsarnaev was sentenced to death. On review, the First Circuit Court of Appeals overturned the sentence on the grounds that the district court judge failed to allow in evidence that Tsarnaev's brother, Tamarlan, had killed some people a couple of years before. The evidence was a key part of the defenses mitigation strategy - they were arguing that Tsarnaev, while guilty, didn't deserve the death penalty because he had essentially been dragged into this lifestyle by his brother's jihadi mentality, and that his brother had essentially forced him along. The killings were how the defense planned on showing that Dzhokhar understood his brother to be serious, not just a big talker, and they argued that by denying the defense the opportunity to present the evidence it prevented the jury from drawing the necessary inference to make the "undue influence" case that they were trying to establish.

(2) While I don't necessarily buy the argument that the defense is selling, they made the excellent point that it really should be the jury that is making the determination of whether evidence is believable or not. That's why the jury is there. Judges often have to act as gatekeepers, however, to determine whether evidence is too prejudicial and so risks confusing a jury more than providing clarity. That's what happened here - the judge decided that since both of the possible killers in the 2011 murders that the defense wanted to introduce were dead, and the affidavit testimony they wanted to introduce arguing that Tamarlan was the killer would have served the motives of the other possible killer (who would have been trying to prove his innocence and had every reason to point to Tamarlan) that the evidence wasn't reliable and therefore wasn't appropriate to bring in. This is a close call, and a very difficult one, and the Court needs to reckon here with the appropriate standard for overturning a distrcit court decision on this type of issue.

(3) For what it's worth, a lot of people were playing dumb during this argument. Chief Justice Roberts and Justice Alito both hinted they didn't really get the undue influence argument. Justice Kavanaugh flat out said he didn't get it. The attorney for the US completely botched it. I strongly suspect the Justices understood it well enough, they just discredited the argument and were playing dumb to show their disdain for the argument. They do that sometimes, and it's frankly a bit obnoxious - usually it is confined to Alito (although Breyer does it in a way that he thinks is cute, but isn't - it's usually not quite as annoying as when the Conservatives do it, though, because he's usually trying to draw out a better argument from counsel rather than mocking the argument being made). The attorney for the US generally may have misunderstood the point of the argument as she kept suggesting that it would cut the other way and that if Dzhokhar learned his brother was a murderer and that made him more likely to follow Tamarlan that that would cut against the undue influence issue. This seems to completely misread what the defense counsel was suggesting and doesn't seem to really get how such psychological abuse would have played out, if it indeed occurred.

(4). Basically, if a Justice went into this case supporting the death penalty, they support upholding the original district court verdict and sentence. If they oppose the death penalty, they support the First Circuit throwing out the sentence. It's all quite predictable. Maybe someone will surprise me by joining the opposite side when the decision is released.

(5) The second case of the day was Babcock v. Kijakozi, and this was a bit of a snoozer. Federal employees paid into one pension system in the early 1980's, and that system was switched in the mid-1980's. Employees who are part military/part civilian end up paying into two systems. For certain employees, if they opted into changing systems in the 1980's they were due for a "windfall" - a payment of benefits that they hadn't earned, because of the statutory requirements for dispursing the funds from the pension system. To correct for that Congress passed a law to eliminate the windfall payment, but included an exception so that members of the uniformed services could keep the windfall as an extra bonus payment.

(6) In this case there is a dual-status technician employed by the National Guard. The government argues that most of his service is civilian and as such that he is not eligible for the windfall exception. The technician argues that while much of his role is civilian in nature, the test in the statute isn't military v civilian but instead is whether he is a member of the uniformed services, which the National Guard expressly is defined as. The two sides went back and forth on the finer points of whether a dual-status technician is or is not "wholly" a member of the uniformed services, whether that word "wholly" applies to the payments the technician receives or the uniform he wears, and what the meaning of the word "as" is in the statute in question. Yeah, it was ... exciting.

(7) Probably the most exciting thing about the case was that the lawyer for the Petitioner was former Acting Solicitor General Neal Katyal. There was a time that Katyal was a rising star in left-leaning legal circles, but he describes himself as a radical centrist, has praised both Justices Gorsuch and Kavanaugh, and was the primary lawyer in a pair of anti-union cases that gutted public employee unions. In other words, he's largely worn out his welcome on the left, and would have no chance to get an appointment from the right. A once promising, perhaps likely, future Supreme Court pick now seems destined for private practice ... but that's not so bad when you get to argue in front of the Supreme Court as often as he does.

(8) There was an interesting discussion between Justice Breyer and Mr. Katyal about legislative history in this case. Justice Breyer went back to the legislative history and essentially treated it like it is gospel, saying that the members of the Senate would all have read it and signed off on it. I really hope Justice Breyer doesn't believe this, because it's just not true. If I agree with the late Justice Scalia on anything it is that legislative history is not a good source of law and is at best a guidepost. While Mr. Katyal told Justice Breyer that it was fine to look to legislative history, he nonetheless pointed out that virtually nothing in the way the legislative history as written actually made it into how the statute itself was written. Ditch the legislative history, Justice Breyer. It's not as helpful as it seems.

(9) Quote of the day - it's not a fun one. It is instead a really good example of how powerful well-written, concise descriptions of the law can be, and how they can effectively frame your argument for you. This is from the attorney representing the United States in the Tsarnaev case, arguing in favor of viewing any possible errors committed by the judge in the mitigation phase as harmless error only. The last paragraph especially is extremely well done:

Mr. Feigin: The court of appeals should have let that verdict stand. Instead, it unearthed a previously unmentioned supervisory rule to invalidate a careful and lengthy jury selection process that a prior panel had praised. That process reasonably favored individualized voir dire over focusing every prospective juror on pretrial publicity through rote content questioning that would have been unhelpful.

The court of appeals then again usurped the district court's discretion by insisting that the jury had to hear unreliable hearsay accusations against Respondent's brother by a dead man with a powerful motive to lie. We'll never know how or why three drug dealers were killed in Waltham in 2011, and none of Respondent's evolving theories justifies inserting that separate crime into the penalty phase proceedings for Respondent's own individual participation in the 2013 Marathon bombing.

And even if the court of appeals had identified a misstep in one of the hundreds of judgment calls that this complex trial required, any error here was harmless.

The experienced district judge empaneled an impartial jury which heard overwhelming evidence about Respondent's own actions and motivations and rendered a sound judgment against a motivated terrorist who willingly maimed and murdered innocents, including an eight-year-old boy, in furtherance of jihad.
 
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